businessaddressfor the record. thewitness:stuart hershon ......now,these diagrams aren't...

PROCEEDINGS

busIness address for the record.THEWITNESS: Stuart Hershon, business address Is333 EastShoreRoad,Manhasset, New York.THECOURT: Would you please administer the oath officer.COURTOFFICER: Raiseyour right hand.Do you swear, or affirm the testimony you will give today, will,be the truth?THEWITNESS: Yes, I do.THECOURT:' Have a seat, sir .. Keep your voice up. It's adifffcult room for sound. .Pleasemake sure the lawyers canhere you, the jury can here you, the court reporter can hearyou. we will be fine. If someone can't hear, you let me know.Mr. Gunzburg, you may Inquire.

Dr. Hersho~ - PLAINTIFF - Direct

DIRECT EXAMINATIONBY MR. GUNZBURG:

Q. Good afternoon, doctor.A. Good afternoon.Q. Doctor, have you and I ever met before today?A. Yes.Q. When?A. Out In the hall.Q. Okay,that was out In the hallway?A. Yes.Q. Other than that time out In the hallway, did we ever

meet before today?A. NO.Q. Okay, now, what type of medicine do you specialize

in?A. I am an orthopedic surgeon.O. What type of patients do you treat?A. I treat people with muscular skeletal prOblems,

people with inJuries, sports injuries, Injuries to the bones,joints, muscles.

Q. Where do you work?A. I have two offices. One in Manhasset, which Is in

long Island, and another one in Manhattan.a. And are you currently licensed?A. Yes.a. And where are you licensed?A. .New York state and California.Q. And what are you licensed in?A. Sorry?a. What are you licensed in?A. Practicing medicine.a. And where did you go for undergraduate?A. Harvard University.a. And where did you go for medical school?A. New York Medical College.a. And did you do a surgical ••withdrawn. Old you do

an internship?A. I did an internship at the University of MichIgan

Dr. Hershon - PLAINTIFF - Direct

HospItal, Ann Arbor, Michigan.a. Old you do a residency?A. I did residency In two places.. Georgetown Hospital

In Washington D.C,and the New York Saint LukesHospital inManhattan.

Q. Old you have a specialty In your residency program?A. Not in those days, no. Oh,Orthopedic Surgery,

residency In Orthopedic Surgery.a. Soyou did your residency in orthopedics?A. Yes.a. Now, do YOUhave any kInd of affiliation to the New

York Yankees?A. Yes.a. What type of relationship do you have with them, or

currently have?A. I was with the New York YankeesBaseball team as

head team physician from 1988until 2009. And.now I'm aSenior Orthopedic Consultant and adviser of the Yankees.

Q. And are you Board certificated?A. Yes..Q. What does it mean to be Board certified?A. When you finish your resIdency and training, you

take an examination and you have to past that examination tobe certified by the America Board of Orthopedic surgery.Shows that you learned your skills asa resident and you're ableto perform surgery and treat people for orthopedic problems.You can do that without being Board certified, but it's anrecognition that you passed the examine and that yOUhavebeen admitted to the Board based on your character and yourpast history.

Q. Now, do you have any affiliations to any hospitals?A. Yes.Q. And with whom are you affiliated with?A. I am affiliated with the North Shore Long Island

Hospital, Saint LukesRoosevelt Hospital Center In New York, NYULangone Hospital in Manhattan.

Q. And have YOU ever lectured in orthopedics?A. Yes.a. To whom have you lectured?

Again, thousands.Haveyou ever done orthoscopic surgeries on the

Dr. Hershon - ~~AINTIFF - Direct

A. I have lectured to doctors, student residences, and Insome caseslay-peOPle,depending on what the circumstancesare.

Q. And have YOUever published any articles?A. Yes.a. What type of articles have YOUpublished?A. Articles about orthopedic cases,knee, shoulder,

different joints. .Q. And have YOUever trained residents?A. Yes.Q. And where have you trained residence?A. At the hospitals I mentioned before.Q. And the residence are - described for us, what are

residents?A. Sorry.Q. Where are they from, the residence?A. The residence are doctors In training at the hospitals.

I mentioned. They are people who have finished an Internshipand now rearn how to be Orthopedic Surgeons at the hospital. .So they are taught by people who are on the staff who arewhat we call attendings, people who currently practiceorthopedic surgery and on staff, their title. I am assistantclJnlcal professor of Orthopedic Surgery.

Q. Where do you have that title?A. At NYU.Q. And how many surgeries have you actuaHy

performed during your career asan orthopedic surgeon?A. Thousands. I can't tell you exactly but probably

. maybe 10 thousand. I am not sure exactly.Q. Okay,and how many surgeries have you done on the

knees?A.Q.

knees?A. Yes.Q. Any other type of surgeries in the knees?A. In the past I did knee replacements, but I don't do

those anymore. And different procedures, reconstructionwithin the last 15 years are .so. OrthoscopIc Surgery primarily.


And have you ever testified In court before today?Yes.And have you ever testified for plaintiff's?Yes.Haveyou ever testified for the defendants?Yes.And tell the jury how many times have you testified

Never.Okay,now-.

MR.GUNZBURG~Your Honor, at this time I'doffer Dr. Hershon asa treating expert witness.

THECOURT: Any objection, Mr. ReynoSO?MR.REYNOSO:No.THECOURT: Soqualified.MR.GUNZBURG:Thankyou,YOurHOno~

a. NOwdoctor, did you have to cancel your schedule tocome in here this afternoon?

A. Yes,I did.a. What kind of schedule did you have planned?A. Office hour surgery.a. And are you getting paid for the time that you're

spending here In connection with this matter?A. Yes,I am.Q. And can you tell us, and the Jury how much you're

getting compensated?A. I believe it's $6,000.Q. Okay,and did you review any records In connection

with this case?A. YesJ I did.Q. And what did you review?A. I reviewed the charts and records for Mrs. Luna.a. Okay,and what were the circumstances under which

you began treating Ms. Luna?A. I first saw her In my office. If you want the date, I

have to refer to the chart.a. You can. With the permission of the court, can he

refer to th e chart?MR.REYNOSO:CanI shuffle through one

Q.A.Q.A.a.A.Q.

for me?A.Q.

Dr. Hershon - ~LAINTIFF - Direct

minute. I haven't seen what he is going to look at. Can Ishuffle through one minute?

THECOURT: QUICkly.Doctor, can you hand it to him. You can

approach.MR.REYNOSO:Thank you.THECOURT: You may continue, Mr. Gunzburg.

Q. What were the circumstances under which youbegan treating Ms. Luna?

A. So, I first saw Ms. Luna on November 4th, 2008. Shecame to see me nIne days after she stated that she fell and shewas complaining of paIn In her right knee.

Q. Now, did you know -- by the way, you know todaythat Ms. Luna Isa doctor, right?

A. Yes.Q. Old YOU know Dr. Luna prior to your treatment of her

.Inconnection with this matter?A. NO, no.Q. Okay, now when she first came to you, did you

conduct a Physical examinatIon?A. I did.Q. And what did the Physical examination show you of

Ms. Luna's condition?A. My examination at the time ••now counsel, would

YOU like me to go through the whole thing, or Just summarizeit.

Q. I would say summarize it.A. Shewas complaining of pain In her right knee, and

she had some weakness of her right knee. She lackedcomplete range Of motion. She lacked about 5 degrees ofwhat we call extenSion, the ability to completely straighten theknee out.

THECOURT: She lack 5?THEWITNESS: Sorry.

A. She lacked 5 degrees. She lacked 5 degrees ofextensIon, so her knee stuck In that position. Shewas unableto completely straighten It out. Her knee was stable and shehad what we call JOint line tenderness, which is tenderness atthe Joint line. What yOUcan feel, what we call grade 3. That


means significant, painful.Shealso had what we called Questionable positive

varus sign where you manipulate the knee and you feel it click,or pop outside the knee.

Q. What does that mean to you, positive?A. That's indicative sometimes of a torn meniscus, or

torn cartilage. Soshe had pain 1nher right knee and inability> to completely extend it and Questionable popping or varussign.

Q. Did you take a history?A. Yes.Q. And what significant finding did It reveal? I have to

repeat It.What did the significant history reveal?

A. Shetold me she was a pediatrician, that she was onher feetfor most of the date. Shedeveloped some swellingafter Injury. Shehad been seen somewhere else prior toseeing me and she had had an MRItest that was done prior toseeing me and I think I mentioned that she said she wasworking and on her feet for a considerable amount of timeduring the day. other than that, she had a history Of kneesurgery on her opposite knee. Shehad no history Of cancer.She had an allergy to a medication which was not remarkable Interms of the examination and the rest of her history was notremarkable.

'0. Doctor, she had a history of left knee arthroscopy.What did that mean in terms of her right knee to you,anything?

A. NO;In my opinion, It had no relationship to theproblem. I don't think it had any relationship to the injury toher right knee.

Q. Now you mentioned the MRls. We have them inevidence. Old you review those MRI'swhen MS. luna came toyou?

A. Yes.Q. And did you also discusswith MS. luna her options at

that point and time?A. Yes, I did.Q. And what did you tell her?


A. I told her that she had a torn meniscus, or torncartilage. We use the term interchangeably. And that hi allpossibility she was going to need an operation, arthroscopicsurgery. I advised her to do some exercises to keep her kneestrong and I told her I would see her in about two weeks.andwe'd reevaluate the situation.

Q. And did you see her again In two weeks?A. I saw her again but wasn't exactly two weeks. I can

tell you exactly what date it was.It was on the 11th of November which I guessWas

lessthan two. one, It was one week later.Q. When she came back one week later what happened

then?A. Shewas stili having pain. I told her that she was

probably going to need an arthroscopic operation. She hadsome swelling. I had discussedwith her, but did not removeany fluid from her knee. Advised her to come back again, andwe'd reevaluated making the decision whether or not she'dneed surgery.

Q. Did there come a point and time she came back?A. Yes.Q. vvhathappened?A. She came back on the 18thsame month, November,

and at that point the pain had persisted and we decided that. we were going to go ahead with the orthoscopic procedure.

Q. And did there come a point and time you performedan arthroscopic procedure on Ms. Luna?

A. Yes.Q. And what's the purpose of that arthroscopic

surgery?A. well, an arthroscopic operation -- should I describe

the procedure.Q. You know what, let me show you the board which

are now In evidence. YOUcan use the board to explain to thejury Ms. Luna's preoperative condition and surgery andpostoperative position. You can do It In a sitting or standingposition, however you feel comfortable?

A. I'll stand up.Q. Okay.

I'm going to use thIs model.If yOU like to use the model. Isthat a model?This is the model of the knee joint similar to that

Dr. Hershon - ~LAINTIFF - Direct

A.Q.A.

one.Q. Isthat a fair and accurate depiction of a knee joint?A. This Is a representative mock of knee joint without

muscle and skin, just bones.Q. Would that help you explain to the jury the nature of .

the injuries?A. I think it will.Q. Pleaseproceed. First of all describe to us the

anatomy of the knee?A. That's what I'm going to do. Sothis is a model of a

knee Joint. This Is the model of what would be my right kneelike that, so this Is the thigh bone. I don't know if you can seeit. Okay, thigh bone, leg bone.

Q. Doctor, maybe you want to come out in the frontnow so everybody can see.

A. Thigh bone, leg bone and the Joints Is in between,right and this Is the knee cap. So It's all covered with muscleand skin. If you took that away, the Skeleton, that Is the kneecap called the patella. So I'm going to bend the knee and I'mgoing to -I'm going to turn up the knee cap, so you reachdown and turn your knee cap out.

Now you're lOOkingat the Joint. The joint is theblue. That's what you're looking at in the Joint. Now I wantto describe the Joints to you. What ~-It's a like normal. Thebest way I can describe it is to say the blue surface, which Is theJoint surface, It's the surface of the bone. It's covered withwhat we call articular cartilage. It has like a white thincovering that look like an egg shell, but the egg shell would be .slimy. One best way I can deseribe what that looks like Is to tellyou that If you ever eat a piece of chicken, break the joint upand see that white, that's a normal Joint. Okay. so, you'relookIng at the blue, that's a normal jOint, and these cushions,these pads look like half a bone. That's what's called meniscus,and some people refer to it ascartilage and you have themedial. One inside of the knee and the lateral one on theoutside of the knee.

._ ~.. _ _ .. ~_ .._-----


a. Doctor could you just show the jury where the lateralmeniscus Is In relationship to the knee?

A. It's on the outside. The lateral Is on the outside,medial is in the inside, and those cushions serve for pads. Thehave different functions, but they serve asspacers, cushions, isshock absorbers. Sowhen you move your knee up and down,there Is cushion there and it keeps the bones apart. That'swhat the function is, and some other functions to serve aslubrication. Basicallythat's what those do. And this surfaceshould be nice and smooth and clean and have no dents, orbruises on them. Sothat's the anatomy and then you have thesurface of the knee cap, and where the knee cap also rubs here.

O. Doctor, can I askyou a Question? What's theImportance of this cartilage meniscus between the two bones?

A. It's a cushion shock absorber and also serve asa.lubrIcator and spacer. If there Isnothing there these twobones come together.

Q. What does that mean?A. Meansyou're going to have pain, usually represents

an arthritic knee.Q. What is arthritis?A. Arthritis is, Instead of having that nice smooth

surface, the white glistening surface, It's more like copper linedrough SUrface,not smooth, and some areas almost looks like astrand of spaghetti, and It's rough, and instead Of smoothpavement, It'S rough. When you have an uneven surface, thejoint doesn't work properly. Sowith arthroscopic surgery,what we do Isput a tiny telescope ,it'S smaller than that this.It hasa camera. It goes Into a tiny puncture as big asa fingernail.

Now It's in the joint attached to a light source andyou look up and see the t.V. screen monitor. So you see thejoint. You visualize the entire joint with the endoscope. Youdecide what you want to do, put the other Instrument on theother side of the knee, and that's the Issue,the work you'regoing to do, whether shave it, or clean it. That's whatarthroscopic surgery Is. Then you remove these and putstitches In. That's basically what arthroscopic surgery Is.

O. Could you use the board to describe the pre-surgery

this.


condition.THECOURT: Doctor, when you piCk up the

diagram, identify it on the top right.THEWITNESS:.This is number 8, Plaintiff's

Exhibit Number 8.THECOURT: Fine.

A. So,this Isa diagram in color of what I Just showedyou. I don't know if you all see It, so, here is the knee cap. Itold you about the thigh bone, leg bone down here, and themenisci In here sticking in here, and in this particular diagram,mine was blue, this I guess is purple and this Is the knee cap andthe knee cap tendon, and here you can see the meniscus. Thehalf a donut I showed YOU before on that model. These areligaments.

NOW,hears what the arthritis looks like. You seethis area here where the Joint is uneven and red and angrylOOking,so Instead of being nice and smooth, and this Is redonly because this Is the color on the diagram. Again I told youIn real life, It's a white substance, and this is angry looking.Looks like someone came along and was taking a shot at it witha hammer, and this Isa tear of the meniscus. Hear's themeniscus, the cartilage, that cushion I showed you, and here'sthe tear.

Now, these diagrams aren't specifically exactly whatMs.Luna's looked like because her problem with the arthritiswas more in this area here, and the tear was in this area, butgives you a fairly good Idea what things look like instead ofbeing nice and clean, they are red and angry and torn.

Hear's another view of the meniscus tear. Only inher casethe tear Is not here, It's - I'm going to mark this.

MR.OUNZBURG:Goahead.THEWITNESS: In her casethe tear is here, like

THECOURT: Okay.THEWITNESS:Okay,so, this iswhat's torn In

her caseand this Iswhere the arthritis Is, In that areawhere it's all rough and angry. So torn meniscus, therough area, also in this area here there are also arthriticchanges.

Dr. Hershon - PL~~NTIFF - Direct

.THE COURT: Are you having trouble seeIng?THEJURORS:Just a little bit.

Q. Doctor, when you're referring to the torn meniscusand you're drawing that area on the pad, if you will, assumingthat Ms. Luna didn't have the surgery, what would that mean;what kind of condition would she be In If she didn't have it?

A. The tear gets worse. It keeps shredding, themeniscus tear. When It tears it doesn't heal, doesn't haveenough blood supply. Never does, In mine, in yours, in about90 percent, maybe 85 percent it wouldn't heal because itdoesn't have good blood supply. The blood supply comes infrom the edge and that'S only a very small percentage. Inolder people, when I say older, once you get passteenage,most don't heal. So when you have a tear in your 30'S40'S,50's, maybe older than that, they don't heal, and they grinbecause the surface Is uneven. That surface I showed youshould be smooth. This Is grinding on this surface becausethey are close together which ts not necessarily easy tounderstand. It's not a big space. This looks like a big space,even on the model. I showed you, Its not. It'Ssmall. Whenwe put the endoscope, you have to push it tn. YOU see thesurface close together. If you have a bad spot, then that badspot Is gOing to rub. I like to compare It to If you put a stoneIn a machine, or cylinder and that cylinder Is going up anddown and there is a stone in there, It'Sgoing to irritate the wallof the cylinder and eventually it's going to break down. sothat'S what the tear Is,and that's what the arthritis looks like.

Q. What about In the third diagram on the right?A. This one?Q. Yes.A. well, this IsShOwingthe knee cap tendon, which was

not involved and this is the knee cap Itself. What this isreferring to Iswhat's called slnovitis.

Q. What does that mean?A. Inside the joint, the lining of the joints, of these

joints all have a lining. It's called the slnovlum. Sinovium Is atissue that's soft and enables the joints to align. Ordinarily It'Sthin. It's almost like comparing the lining to let'S sayaluminum foil. It'S thin. The joints glide when It'S Inflamed,


irritated. It's boggy like foam. It'Sboggy and causes pain.That's sinovltls.

So when Ms. Luna had surgery it was necessary toremove the part of the cartilage that was torn, to remove.some of the slnovlum, the Inflamed tissue and also do what's.called chondroplastv.

Q. We have another board so you will be able to go tothe next one and indicate to the court reporter -

A. This Is Exhibit Number 9. so this shows you what Iwas talking about before. Remember I showed you thearthroscopy and here's the arthroscopy. Hear's things to goclean up. Sometimes you can put a third one in, but usuallyIt's two and that's what arthroscopic surgery Is.

NOWin cleaning UPthe arthrltls, smoothing it outand removing some of that rough tissue, it'S a shaver thatcleans the arthritis. In her case I told you a more accuratedepiction would be involved In this area which Is the weightbearer, so that has to be smoothed up and cleaned out withthe shaver.

Also here, this Is the tear. Remember' told you thetear is in here. That has to be removed. Not shaved but hasto be removed. Sometimes you shave it too, but has to beremove so what you wind up is with a meniscus, or cartilagethat Is much smaller than she started out with. But all of thatwill to be removed.

Q. What do you put in it'S place?A. Nothing.Q. So It'S empty?A. Empty. NOW,to be more accurate, there are, I

wouldn't say experimental, but there are casesbeing donenow, selected caseswhere cadaver graphs are put in there, butwould be usually in someone of Ms.Luna's age, but it Is In somecases. TOanswer your Question they can put cadaver graphsbut very rarely done. YOUhave to remove the part torn. Youcan't repair It. It wouldn't heal. YOUcan put stitches in. It'slike putting stitches If you have bad diabetes in your foot, youhave bad circulation. That'Swhy sores won't heal. If you putstitches where there is no circulation, It won't heal. That'S whywhen we repair, we remove the part that'S torn.

Dr. Hershon - PLA~NTIFF - Direct

Q. can 1ask you something? What prevents furtherdeterioration of the meniscus if you're removing that piece?

A. somet;mes it doesn't cure It. sometimes itcontinuing to tear. Sometimes the entire thing can be torn,so you have to remove as little - as little asyou can and stillmaintain the structural anatomy because you like to maintain itbecause it's serving asa cushion, even though that cushion Isgoing to be smaller, It will still function, but lessso.

Q. CanI askyou a Question. When you remove thatlarge piece of meniscus, is there a portion of the femur andtibia that comes together?

A. That's what can happen, yes. NOW because now thejoint space, now these surfaces are not being protected by theentire cartilage, so they start to get a narrowing of the jointspace. That's what arthritis is.

Q. What does the patient sense?A. pain, because it'S almost like surfaces are kissing.

Once they start to touch and rub against each other, then youexperience pain, And you can have a catching sensation. Youcan have clicking, you can have pain --you can have this painstanding.

Q. Anything else on the board you want to introduce?And what about the last board In terms of post-operativecondition, what did she actually look like after the surgery?

A. well, after the surgery --THECOURT: Doctor, this is board number 10

we are talking about now?THEWITNESS:Number 10.THECOURT: Okay.

A. So,after the surgery, and again, in this diagram inthese drawings it always refers to this area, but In fact this areahere, so It'S smoothed out. It'S cleaned up. Remember In thisone was all red and angry? Well, It'S been smoothed out. It'Salmost like taking - mowing the lawn. You smooth It, youcan't cure It. 'IOU can't cure arthritis by making it go away.You can help the symptoms by smoothing It out. That'Swhatwe call grade, or rough area, we smooth it out and that'S callchondroplasty and that'S what she had done here.

And here where the tear was, a significant part was


removed. And the lining, the slnovium, that was also cleanedup. You don't remove the entire slnovium. You remove theswollen area that's painful to you.

a. Now doctor, you mentioned arthritis?A. Excuseme. I'm just -. Excuseme.a. sorry.A. This is .• this was a little hard to see. Here's the

meniscus again you're talking about. Here's the normal one.This 1sthe normal half of a donut and you know, we have - wehave a significant amount of the men Iscus,or cartilage to makeIt smoother.

a. Doctor, what I was going to askyou was with regardto arthritis, did Ms.Luna complain to yOU?

A. Excuseme. Are we finished with this?a. Yes,you can sit down.

Old Ms.Luna complain to you when she first came toyou that she had any problems with her right knee before thisIncident?

A. NO.a. And is it possible that someone can have arthritis and

not know It?A. Yes.Q. And If someone was •• have you ever heard the term

asymptomatic, someone who never had a problem?A. Yes.a. What does that mean?A. Asymptomatic means no symptoms. so, not

complaining of anything. Nothing hurts.Q. And Is It possible that someone can have arthritis

and not know about It and have an accident that all of asudden make that condition symptomatic?

A. Yes.Q. DO you know If that's the type of situation that

happened here to MS. Luna in connection with her right kneearthritis?

A. I think so.a. Now, doctor, I'm going to read for you a

hypothetical Question, and then I'm going to askyou to assumethese facts in evidence and then askyou your opinion, okay?

Dr. Hershon - PLAiNTIFF - Direct

A. Repeat that please.Q. I'm going to askyou a hypothetical Question, then

I'm going to ask you your opinion?A. Okay.Q. I want you to assumethe following facts are tn

evidence doctor that on October 25, 2008,at around 9:30, 10o'Clock, a woman boarded a 044 New York City Transit BusatArcher Avenue and southern Boulevard In Jamatca, New York.She paId her fare and firmly take hold of the handrail with herright dominate hand when the bus operator suddenly,vlolentlv and without warning accelerate the bus ripping herhand from the railing and causing the woman to fall hard andrapidly on to her right knee.

AcCording to the woman, she was in excruciatingpain. Shetestified 10 out of 30, sharp, constant pain and wasunable to get up. The bus operator stopped the bus andseveral good samaritans, Including a former ex-ponce officerpicked her up and placed her In a seat and that woman roadhome with her leg extended In front of her In pain, and whenshe arrived at the parkchester stop, she limped off the bus,passthe bus operator down onto the sidewalk, and she limpedhome. And she took 40 minutes to get home, what wouldnormally take two to three minutes. And when she got home,she elevated her right leg. Shetook Motrin, put some lee onher right knee to reduce the swelling and she claims that shewas unable to sleep throughout the night and the nextmorning she took a taxi cab to JacobI Hospital EmergencyRoom where she went to the ERand was treated by the staff.

She underwent an x-ray. They told her she had ajoint effusion, swelling and tenderness. They wrapped her .knee up In an ace bandage, issued her a cane to assist Inambulatlon and Instructed her to take Motrin, and told her tosee an orthopediC doctor. They gave her instructions on rest,Ice compress and to elevator, and then discharged her.

Three days later when the paln did not improve, shereceived a referral from a fellow physician. Dr. perez, to obtaina right knee MRI. Shewent to DoshIDiagnostic and underwentan MRIof her right knee. Shemet with the radiologist and theradiologist advise hear based on the MRIfilms which are

Dr. Hershon - PLA1NTIFF - Direct

evidence, that she had a complex tear within the interior hornof the lateral menIscus and Intra-substance tear of the medialcollateral Ugament complex at the level of the joint space ofthe medial menIscus, high grade chondromalacia in the patella.She had loose body joints within the supra-patella bursa,intraosseous contusion within the central and posteriorportion of the lateral femoral condvle and adjaCent portion ofthe tibial plateau, large retropatellar and suprapatenereffusions, extensive soft tissue swelling, anterior to the patenaand patellar tendon.

The woman took the MRIreport to you, you metwith her, you examined her and you indicated that she hadswelUng and pain and that she had grade 1 effusion of the rightknee and limited strength of the right knee, 4 out of 5, ascompared to the 'eft. limited range of motion, medial Joint linetenderness lateral joint line tenderness. positive McMurray'ssign on the right knee, and she underwent physical therapy inan effort to avoid surgery, and she had the phvsical therapyand accordIng to her, made it worse.

She stopped and she returned to your office, and onDecember 10th, she underwent arthroscopic surgery bY you atRoosevelt Hospital and a partial arthroscopiC lateralmeniscectomy and femoral condyle and a partial synovectomy.Shewas discharged home with an ace bandages around herknee, a cane and pain medication and given a program ofrehab and phvsical therapy. Shetestified it consisted of avariety of exercises which when she used the board which wehave here, which indicated various exercises that she.performed and she did massage,ultrasound, heat and cold.Shewas given a home exercise program and she complains thatshe was unable to resume her full-time position as apediatrician. She needed the help of an assIstant, unable tohandle the same patient load since the Incident, and has to sitand take breaks due to right knee pain and accordlng to yournotes, post-operativelY. the woman's prognosIS was guarded,and you discuss possible future surgical intervent10n andsupartz injections trial.

And she also complain she 1Sunable to engage in herusually customary actlvit1es and her injurieS have had an Impact

!I

.. _-----------

Dr. Hershon - PLAL~TIFF - Direct

on her Quality of life as a pediatrician and also in her ability totreat her patients and participate in dance classesand alsothatshe is unable to do pilates.

Doctor, now I'm going to ask you your opinion. 00 .you have an opinion with a reasonable degree of medicalcertainty as to what caused Ms. Luna'Sright knee injuries.

A. Yes.a. And what's your opinion? .A. I think the fall and the contusion which Is the bruise

of her knee and the tear of her lateral meniScus caused her tohave the symptoms, or the history that you described.

a. And do you have an opinion asto - with a reasonabledegree of medical certainty, asto Ms. Luna'Scurrent conditionbased on your medical chart?

MR.REYNOSO:Objection. May we approach?THECOURT: step up.(Whereupon, there is a discussion held off the

record at the bench among the court, defense counseland plaintiff'S attorney.>a. Doctor, do you have an opinion with a reasonable

degree of medical certainty asto whether MS.Luna was unableto engage in her usual and customary activities for 90 out of180 days immediately following her accident?

A. Yes, I did.Q. What'S your opiniOn?A. That she was unable to do those things, usual things

that you described.a. Why is that?A. Because of the pain.a. Becauseof the pain?A. Yes.a. Now, does - do you have an opinion with a

reasonable degree of medical certainty asto MS.Luna'Sprognosis?

A. Yes.a. And what is your opinion?A. well, to use a word that we use, I would say it'S

guarded, which means that it'S not good. It's a little hard tosay, but I would be concerned in the future. She may need


another operation, either arthroscopic surgery. or kneereplacement.

Q. Why do you say that?A. Becauseof the findings that I saw at the time of

surgery. the arthritis that she hasand the significant tear of themeniscus and the other things that I described In terms ofwhat surgery was.

a. Doctor. have you ever seen any patients that havesimilar conditions to MS.luna?

A. Yes.a. And the patients, based on your experience with

patients. havevou ever seen patients with similar conditionsundergo knee replacements?

A. Yes.a. And what's the IikeUhood that MS. Luna is going to

need a knee replacement on her right knee in the future?A. , think it's possible and asshe gets older it becomes

more likely.Q. And when you say It's pOSSibleand more likely as she

gets older, if I told you today she is 48 years old. could you giveus an Idea when you believe she would need kneereplacement?

A. I didn't hear you.Q. Could you tell us based on your experience and

patients you've treated, when do you believe MS.LunawillreQuire knee replacement assuming she's 48 today?

MR.REYNOSO:ObJection.THECOURT: Sustained.

Q. Doctor, do you have an opinion with a reason degreeof certainty base on your evaluation of MS. Luna.when she willreQuire knee replacement assuming she is 48 today?

A. DOI have an opinion?Q. Yes.A. Yes.a. What's your opinion?A. I think it becomes more possible when she Is

approaching the age of 60.a. When someone age 60 undergoes knee replacement,

how long does a knee replacement typiCally last?

Dr. Hershon - PLA1NTIFF - Direct

A. There are different statistics about It. One wouldassume it would probablY last up to maybe beyond 15years.Anywhere from 12, 18 years. There are people that go a life.tIme without another operatIon, but it's fair to tell a patientwho Isgoing to have a knee replacement they may needanother one in their lifetime after anywhere from 12 to 15years, average out 15 years ago like that.

Q. IS It fair to say if Ms. luna is going to undergo kneereplacement at age 60, she would probably need another oneIn her 70's?

A. It's certainly possible, yes..Q. NOW ••A. I'm sorry, wen, again based on what I saId, middle to

late 70'S,It varies. You can have knee replacements that's fine,and lasts 5 years. YoUcan have knee replacements that's fInethat lasts 20, 30 years. The numbers we used to tell people It'Sin the 15 year, 18 year range.

Q. What does it depend upon, the need to have kneereplacements in the future?

A. Becausedifferent things happen. The componentwe call them, when you have a knee replacement, everything Ishowed you there Is removed, so .•

Q. can I Just stop you for a secon"d. .could you shOWtheJury how a knee replacement Is actually done using theanatomicallv scale, the model?

A. SogettIng back to the model. Take that knee capand in the knee replacement most of the time there aredifferent ways to do knee replacements. The bone is cut here,so al1of this goes. This Isa cut and removed and the bone Iscut here, so basically all the knee Isgone. The joint, cut It out.Removed It. And now you're left with space, and In that spaceyou put what are called components. So there is a new parthere and those components are not metal. It'S a differentkind of anoy. Sometimes It's like a plastic, but it'S artificial. Soone goes In here, then you have a matchIng one that goes Inhere. so now you have it In here and also the knee caps. NOWsometimes you can have a knee replacement and only one partcan be removed. That'Scalled a unilateral or unl.

Now you have a new knee. The arthritis is gone .

Dr. Hershon - P~.iNTIFF - Direct

because It's been removed. Sonew parts and those parts, thereason you mIght need another one, Is those parts over timecan start to wear because they are not - they are not what wehave. It's artificial. Soyou have metal, the surfaces canfatigue and they can loosen and when that happens, then pain.Soyou get loosenIng or fatIgue of the artificIal surface, thenyou have pain. That's why people have another one and that'scall a revision, which Isa little harder to do than the original.

Q. Tell us how revision work?A. Revision, you have to go take out what was put In, so

take out the old parts and put in new parts. And becausethose old parts have been in there for a long time, sometimesthe bone Is not asstrong. Sotechnically It's a little hard to doand sometimes the results aren't asgood.

Q. Doctor, do you have an opinion within a reasonabledegree of medical certaInty --withdrawn.

When you undergo a knee replacement surgery, isthat considered an out-patient procedure?

A.. No.Q. what kind of surgery Isthat?A. That's a major operations and you're In the hospital

for about three or four days.Q. And-A. And then there is a lot of rehab afterwards.a. When you saya lot of rehab; one, or two days?A. NO. You either, if you have enough help and

assistance at home you can go home, but then you have to beable to get to a physical therapist and a lot of people, especiallywhen we get older, doesn't have that kind Of help around, sovery often those people go to a rehabilitation facility which is aplace where It's not a hospital, but It'Sa rehab facility and that'swhere you do your exercises and learn how to walk, first with awalker, then with a cane, and eventually get back to your life.That can take awhile.

Q. HOwlong does It take a patient, say a 60 year oldwho has undergone a major surgery such as knee replacementof the right knee, to undergo physical therapy and regain theirlife back?

A. A matter of months, three months or so.


Q. Okay,now, Doctor, do you have an opinion with areasonable degree of certainty asto whether Ms.Lunahas apermanent disability?

A. Yes.Q. What is your opinion?A. I think she hasa permanent partial disability.Q. Is that a permanent partial disability to her right

knee?

Dr. Hershon - DEFENDANT - Cross

A. To her right knee.Q. Will Ms. Luna's right knee ever be normal again?A. No.

MR. GUNZBURG: I have no further questions.THE COURT: Thank you. Step up for one second.(Whereupon, there is a discussion held off the

record at the bench among the Court, defense counsel andplaintiff's attorney.)

THE COURT: Keeping with my promise to you, wewill take a five minute break. Please don't discuss thiscase among yourselves, or with anyone else. Keep anopened mind. You can use the facilities if you like.We'll call you back in five minutes.

(Whereupon, the jury exits the courtroom.)COURT OFFICER: All rise. Jury entering.(Whereupon, the jury enters the courtroom.)THE COURT: Welcome back. Doctor sit. Make

yourself comfortable.Mr. Reynoso, cross examination.Ms. Luna, I will remind you you're still under

oath.CROSS-EXAMINATIONBY MR. REYNOSO:

Q. How you doing, doctor?A. Okay.Q. All right. All right, now, you were asked

at the beginning of counsel's direct examinationwhether you testified at times at trials and you saidyes, correct?

A. Correct.Q. Okay, and you said you testified for both

defense attorneys and plaintiff's attorneys,correct?

A. Correct.Q. Could you estimate in percentage as to what

percentage you testified for plaintiff and whatpercentage for defendant?

A. It's hard to do. I --Q. Rough estimate?A. Well, in malpractice cases, it's usually

for the defense and in the civil cases I'd say halfand half.


And now how often, or how many times a yeartestify?Not often.And how long have you been testifying, foryears?Excuse me.For how many years have you been doing this?Well, since I have been in practice just

Q.youA.Q.

how manyA.Q.A.

about.Q. Okay, about how many years is that? How

long have you been in practice?A. I started practice in 1970.Q. You say not often. Once or twice a year,

are no?A. Yes, that's about it.Q. Now, you have your own patient load right

now, or no?A. Yes.Q. And what percentage of those patients have

personal injury cases?A. A significant number.Q. Significant number?A. Yes.Q. Do you get referrals from lawyers for

patients?A. Not often, no.Q. Now, Mr. Gunzburg asked you whether you met

him before today and you said no, you haven't,correct?

A. No.Q. Okay. Actually you were asked a series of

questions about how patients who have arthroscopicsurgery react, and what type of treatment they mayor may not need in the future, correct?

A. Yes.Q. And during the break, A-Rod came up and you

worked for the Yankees, right?A. I work for the Yankees.Q. He had arthroscopic surgery last year,

do

Dr. Hershon - DE~.t::NDANT- Cross

Yes.Now going back, in your chart do you havedated March 9, 2010? I have a copy of yourCould you see there?A report of what?

MR. REYNOSO: Can I show the doctor a

Yes. I'm going to -- there are certain --THE COURT: No one is asking you to

break any privileges, doctor.THE WITNESS: There is HIPAA.

Q. All I'm saying from -- all I'm saying, onthe news he was, after the surgery, he was backplaying in about a month, isn't that correct?

A. Four to six weeks. I don't rememberexactly. Five weeks, to a month, four and a halfweeks, to a month.

Q. So about a month he was back to playingbaseball, playing third base?

A. Correct.Q. And his job requires him to run and jump,

correct?A.Q.

a reportreport.

A.

right?A.

copy?THE COURT: You may.

Q. Do you have this report in your chart.It's more like a summary?

A. Oh, this is a narrative. Yes, okay, yes.Q. You have that? Okay, great.

Okay, now we have the same narrativeMarch 9th, 2010, correct?

A. Correct.Q. And who do you address in these narratives?A. Mr. Gunzburg.Q. Although you never met him prior to today

you have corresponded with him, is that fair to say?A. Yes. He had asked for a narrative. He

requested a narrative report about his client, mypatient. This is a letter to him.

Q. He called you up and asked you for a report?


A. I didn't speak to him directly. He spoketo my secretary. There is a routine. A lawyer wouldcall and say they want a narrative report. Mysecretary would tell me, I --

Q. I get it. It's fine.A. But there is no other correspondence

between me and him.Q. You charge for this?A. Yes.Q. About how much do you charge?A. You know, I'm not sure.Q. Typically, any idea, roughly?A. It might be anywhere from $500 to $1000.

I'm not sure.Q. Okay. Now, this report closes and then Ihave sort of addendums to the report, anotherseparate letter. Do you see that?

A. A separate letter? No.Q. Okay.

MR. REYNOSO; May I approach?THE COURT: You may.MR. GUNZBURG: I object if he hasn't

seen it, Your Honor.MR. REYNOSO: We can mark it, and I can

ask questions about it now.MR. GUNZBURG: Can I see it?THE COURT; Let the lawyer see it. Do

we need to mark this counsel, or, are we okay?MR. GUNZBURG: You mean mark it for

evidence, or identification?THE COURT: For identification

purpose.MR. GUNZBURG: I have no objection.

You can put the whole report in evidence. If heis going to use it for the doctor let him put thewhole report in.

MR. REYNOSO: Most of it is in hischart. Just one letter.

THE COURT: Show him the letter.

Objection. Is it inOh, it's his chart.ahead, doctor. You may


Q. Just read it to yourself.Okay, now, is this a letter signed by you?

A. Yes.Q. Is it your report you also mailed to

Mr. Gunzburg?A. Yes.Q. And it's also dated March 9, 2010?A. I didn't hear that.Q. It's also dated March 9th?A. That's right.Q. Okay, and it's an addendum to your original

narrative of March 9th, is that correct?A. Correct.Q. Okay, going back to the original narrative,

page 1. You do have a copy of it.. In your -- in thevery -- at the end of the second to last paragraph,it says

Well, you know what, turn to page 3 and thelast paragraph.

A. Page 3 of the March 9th letter?. Q. Yes.A. Last .paragraph?Q. Yes, last full paragraph. Take a look

again at the second to last sentence. Start with,"I recommended".

A. Second to last sentence.Q. "I recommended".A.. Yes.Q. Just read that paragraph?A. You want me to read it?Q. Yes, out loud.

MR. GUNZBURG:evidence, Your Honor?

THE COURT: Goread it.

THE WITNESS: You want me to read whereit starts "I recommended."?Q. Yes, sir.A. "I recommended at that time that she

will see herof futureI alsoinjection


continue on exercise prodigal, and Iagain if necessary. The possibilitysurgical intervention was discussed.discussed the possibility of supartztrial, which I described to her."

Q. Then you added -- that's how you concludedthat narrative. Then you added this addendum. Doyou know why you added an addendum to your report inaddition to your report?

A. No, I don't remember.Q. Could you see the changes that you made in

this --MR. REYNOSO: You know, Judge, I'd like

to enter this addendum into ~vidence since it'snot part of his charts?

THE COURT: You mark it foridentification first. Defendant's A.

MR. GUNZBURG: Your Honor, I'll consentto putting that narrative report and addendum inso the jury can see the entire report.

THE COURT: HoId on. We don't need anydiscussion yet. Mark that Defendant's A, thatletter, mark that for ID purposes now.

Any objection to have the addendummarked in evidence?

MR. GUNZBURG: Yes, just the addendumitself, yes sir.

THE COURT: Hold on, don't -- step up.(Whereupon, there is a discussion held

off the record at the bench among the Court,defense counsel and plaintiff's attorney.)

THE COURT: On consent of the parties,the narrative and letter of March 9th will beadmit in evidence.

Is that your understandingMr. Gunzburg?

MR. GUNZBURG: Yes.THE COURT: Is that your understanding

Mr.Reynoso?

Q.issued

A.Q.

I will

Dr ~ Hershon - ~'ENDANT - Cross

MR. REYNOSO: Yes.THE COURT: Defendant's A will be

marked in evidence, including the narrativeletter and addendum as the doctor called it.And that will be Defendant's A, in evidence onconsent.

(Whereupon, the item previously markedfor identification is marked in evidence asDefendants Exhibit A, in evidence.)

THE COURT: If necessary we will redactwhat has to be if that's required based upon thatform, redact legal terms to replace certainthings that's not in evidence. We will takecare of that later.

Sometimes addresses and numbers arethere that shouldn't be there. I don't know. Ihaven't seen it.

Continue, Mr. Reynoso.Now doctor, you say you don't know why you

this addendum, is that right?At this time I have no recollection.Now you seem to expand on your conclusion,

say for the future here.Could you read what you concluded plaintiff

may need as appose to how you concluded in the otherreport?

A. Do you want me to read it? What was yourquestion?

Q. What was your conclusion here, yourrecommendation?

A. I'm sorry. You want me to read the wholething?

Q. Is it the whole conclusion? Is there aconclusion there, or no? Maybe it's the wrong word.What's your prognosis there?

A. Well, I will read the sentence. Maybe thatwill satisfy you.

"There is a possibility that in the futuresurgical intervention may be necessary. This will

Dr. Hershon - :'ENDANT - Cross

case?A.

relatethat.

I wouldn't know except that she didn'tin her history anything that would relate to

Correct.Did you see what are called degenerative

In other words she didn I t complain about herknee prior to the accident.

Q. Now, you said something very interesting.You said many things, interesting things I notedduring your testimony.

You said that part of the meniscus that Ms.Luna had a problem wi th on her right knee was a weightbearing part, is that what you said?

A. I did.Q. Now does a person 1 s size and height have any

effect, or importance with respect to any potentialproblems with their knee, or their meniscus?

A. It can. But it's difficult to generalize.People who are over weight can have a higher incidentof problems with their knees. Then there are a lotof thin people who have knee problems too. But inanswer to your question, size can be a problem interms of people who are over weight.

Q. Now you mentioned the word arthritisseveral times in your testimony. What is arthri tis?

A. It's an inflammation of the joint. I triedto show it on the diagram where the surface of thejoint becomes inflamed, irritated, not smoothanymore, but rather rough and irritated.

Q. I grew up thinking of arthritis assomething you get when you get a little older. Isthat something you get over time due to wear and tear?

A. You can get arthritis because of age, butyou can get arthritis because of injury and wear andtear too, as you mentioned.

Q. Okay, now obviously in this case youreviewed the MRI taken of Ms. Luna's right knee,correct?

A.Q.

cease;A.

time IQ.

Dr. Hershon - DEFENDANT- Cross

changes in that MRI film?A. Yes.Q. What are degenerative changes?A. Basically it's another way of saying

arthritis. In other words, the joint surface isn'tsmooth. There are little bumps and ridges. We callthose osteophytes, or bone spurs.

Q. If it's degenerative, does that mean ithappens over time?

A. Yes.Q. SO it's not a degenerative condition, it's

not one that occurs one occurrence, it's somethingthat occurs over the years, wear and tear?

A. Degenerative change occurs over a period oftime. The insult to the knee in terms of bruises andcontusion occurs at the time of the injury.

Q. Now there are records in evidence fromBronx Physical Therapy, and the last time thatplaintiff went to physical therapy was on February3rd, 2009, you're aware of that, correct?

A. I can't recall now, no.Q. When is the last ti~e -- withdrawn.

When did your regular treatment of plaintiffwhen did it end, your regular treatment?Aside from the last time when was the last

saw her?That1snot what I'm asking you?

THE COURT: Mr. Reynoso, rephrase thatquestion.

MR. REYNOSO: Yes sir.Q. According to the narrative that we have in

evidence here, March 9, 2010, you saw Ms. Luna onFebruary 3rd, 2009 and then you saw her again onDecember 8, 2009, correct?

A. Yes.Q. And had you continuously treated the

plaintiff since 2009?A. I didn't hear you.Q. Have you continuously regularly treated

Dr. Hershon - Dl:. •.~NDANT - Cross

The

Pardon me?Date.On March 9th report narrative says you saw

December 8, 2009?THE COURT: Wait, wait, wait, wait.

March 9, 2010 report?MR. REYNOSO: Exactly.THE COURT: You said 2009.

2010 report, which talks about the DecemberQ.

her on

the plaintiff since 2009?A. No.Q. And why not?A. I haven't seen her.Q. Is it because she has not gone back to your

office, is it your call? I'm asking why?A. No, she hasn't returned.Q. Do you know why you saw her in February

2009, and didn't see her for another 10 monthsthereafter? Why was there a ten month gap?

A. It happens sometimes. Patients don't comeback all the time.

Q. Do you know why her physical therapy onlylasted three months, then no more therapy after that?

A. Three months is a reasonable time for arehab protocol following the surgery that she had.

Q. Could you --A. And -- excuse me. And sometimes, I don't

know about her case, but sometimes insurancecompanies won't pay for it.

MR. REYNOSO: Move to strike. That'snot the testimony.

THE COURT: We are going to strike thatportion of the response.

Next question.Q. When you examined her that last time in

2009, what were your findings in terms of range ofmotion tests you took?

A. 2009? Tell me the date. What was the dateagain?

Q.. A.Q.


the

not here.to you at the time,attorney referral?came -- here it is.

Let me show you.MR. REYNOSO: May I, Judge.THE COURT: You may.

A. I can read it to you, I put in thatnarrative. For some reason that visit is notDecember -- I can't find it.

Q. That visit is in the narrative, but not inyour regular chart?

A. I don't know why it'sQ. Could be she was sent

by your attorney, it's just anA. And no matter why she

Here's February 2009.Q. Just read from your narrative. That's

find. Tell us your findings according to yournarrative?

A. Okay. In the narrative, 12/8/097Q. Yes, sir.A. You want me to read it.Q. Your findings, yes.A. Okay. She stated that she had occasional

discomfort when rising from a sitting position. Herexamination at that time revealed that the portalsites, incision sites, were well healed. Range ofmotion was 0-140, 0 degrees to 140 degrees. Rightknee was stable to valgus and varus stress. Describecertain tests we do; minimal tenderness was notedover the anterior of the knee. I recommended at thattime she continue an exercise protocol and I will seeher again if necessary. The possibility of futuresurgical intervention was discussed and alsodiscussed the possibility of supartz injectiontrial.

'09 visit, correct?A. No. You want me to refer to the

December 2009, is it?Q. Yes. What were your findings that day?A. I don't have a December -- I have December,

2008.Q.

--- - -----------------------------------------Dr. Hershon - DEFENDANT - Cross

You stated the right knee was stable to

What does that mean?When we stress the knee and.

it, if it's stable it's notcan feel instability. Itthe angle you move the knee

Q.Valgus?

A. And varus.Q. And varus test.A. A stress test.

push on it and stretchgoing to open up. Youwould be valgus varus,if it would be varus.

Q. SO this was good? It was stable?A. Yes.Q. And you said lack pivot shift anterior

drawer, posterior drawer were negative. What arethose?

A. Test we do manipulating the knee, seeing ifit's unstable and you can feel it in differentposi tions; forward, backward, this way, that way, ifa little wobbly, it was loose.

Q. SO they weren't unstable, they were go~d?A. Correct.Q. That was December 2000 --A. That's what we referred to here in the

narrati ve. Unfortunately I don't see it here in thechart, but if I referred to it, it's there.

Q. Now, you were asked on direct whether youhad an opinion as to whether or not Ms. Luna couldperform her usual and customary activities thefirst -- actually 90 days out of the first 180 daysfollowing the accident, and you said within areasonable degree of certainty, yes, that's the case.Do you remember that testimony?

A. Yes.Q. Now, where in your chart did you tell her

that she should not go to work? Where did you sayyou shouldn't work because of her injury?

A. It's not here.Q. Why not?A. May not have told her.Q. It's an important thing if you felt that

Dr. Hershon - L ENDANT - Cross

way, you would have wrote it down, correct?A. Might have.Q. How do you know now whether she was able to

do the first six months following her accident at thattime. You didn't write it down. How do you knowthat now?

A. I think from what she told me when she cameback to visit me after surgery. Patients who havearthroscopic surgery often found asymptomatic goback to work and are able to do certain things eventhough they have pain, but not able to do other thingsthat they did, such as; sports, or gym, or things likethat. , It's a mixed bag. Sometimes people go backto work and are still in pain. Some people don't.

Q. Has Ms. Luna ever complained to you abouther other knee?

A. No, not that I can recall.Q. You also testified the cause of her right

knee injuries were this accident, correct, youtestified to that?

A. Yes.Q. Okay, have you ever seen Ms. Luna before

she came to you on November 2008?A. No.Q. And now you've told us you did see the

degenerative change in existence prior to thesurgery, you saw it on the MRI, saw it in the x-rays?

A. Prior.Q. The degenerative changes that you saw on

the MRI and on the x-rays, were those changes therewhen, you know, at -- doctor were those there frombefore this accident?

MR. GUNZBURG: I'm just objecting.He I s talking about two different things, x-raysand talking about the MRI. Those are twodifferent things.

THE COURT: He will rephrase it.MR. REYNOSO: I will rephrase.

Q. We talked about earlier the MRI and you said

I'm going to refer to this.That's fine.

THE COURT: Off the record.(Whereupon a discussion was held off the

Your question was did I see the

No, the x-rays.And they also showed degenerative changes,

Yes.Yes.Did you see the actual x-rays, or just the


that you did see the degenerative changes on the MRIfilms, correct?

A. Yes.Q. These degenerative changes, were those

changes already there in Ms. Luna before thisaccident from your experience and knowledge andexpertise as an Orthopedist?

A. Yes.Q. Did you see her x-rays?A. Yes.Q. Okay, did they show degenerative changes as

well?A.Q.

record. )A. Yes.

x-rays?Q.A.Q.

report?A.Q.

correct?A. That's correct.Q. And these same changes were reflected in

the MRI films?A. Can't say the films, it would be a different

procedure, but consistent with, yes.Q. And those same changes were in existence

before this accident, correct.A. Correct.Q. That being the case, how do you know that

her injuries since she already had degenerativechanges in her knee, caused by the accident weren'tthere before the accident; how do you know that?

A. Okay, so it's my experience when you have

Let, me ask youdoctor, youcorrect?

That's hard to say.Is it most of them, some of them?No, some, not most.

-----------------------------------------Dr. Hershon - DEFENDANT - Cross

a knee with degenerative changes, or one might say,early arthritis, a lot of people are walking aroundwith arthri tis in their knee. A lot of people in thisroom might have arthritic knees and don't know itbecause it does not hurt. Maybe sometimes you getup in the morning, it's stiff and you don't know it,but it's there. You have to have an MRI for noreason, but you have no change. It may show somearthritic change, especially as we get a littleolder.

Now when you have a significant injury, ablow to the knee, direct blow, contusion, such ashaving a fall, then the bone gets bruised, that showson the MRI. There is bleeding inside the bone. Thenit's like filling up a glass with water. It's okayuntil it fills over the top. It aggravates the knee.

Now if you had a problem before, but nowbecause of the direct blow and the tear of themeniscus, which in all probability was not therebefore, then you have the combination of the pain andthe arthritis, whereas before, you just hadarthritis.

Q. Time is of the essence.this. You said in your life as aperformed thousands of surgeries,

A. Correct.Q. And thousands of arthroscopic surgery?A. Thousands, yes.Q. And would it be hundreds, or also thousands

of knee surgeries, arthroscopic surgery?A. Arthroscopic knee surgeries, thousands.Q. Please, if you can give me a rough estimate,

what percentage of those people you performedarthroscopic surgeries, what percentage of thosepeople have gotten knee replacement subsequentthereto?

A.Q.A.

The majority or less than 25 percent?It's an age factor here, so.Then look at people in the age range of Ms.

Dr. Hershon - FENDANT - Cross

Q.A.Q.

Luna?A. What I'm trying to explain to you and the

jury is that if I operate on somebody today, and theyare 45 years old, then in the future they might needa knee replacement, but we don't know yet. If I didsomebody 35 years ago, if that person I did was oneof those thousands that I did 30 years ago, then theywould be more likely today to need knee replacement.So the word would be significant. A significantnumber of people who have arthroscopic surgery asthey get older wind up needing knee replacementbecause that's space, because you r~moved thatmeniscus and taking that cushion away, the spacestarts to get smaller and smaller. The bone startsgetting closer and closer and eventually becomearthritic in the time span here.

Q. Would you agree less than 25 percent?A. No, I wouldn't agree.Q. Give us number?A. I would say more than 10 percent, and I

would say again, it relates to the age because if youdo somebody who's 20, then, that may not happen untilthey are 60. If you do somebody who is 40 or 50, itmay happen within a short period of time.

Q. You talked about 30 years ago. I wouldguess, correct me if I'm wrong, that arthroscopicsurgery is more sophisticated than it was 30 yearsago, or same thing?

A. 30 years ago takes us into the 80's.Q. YesA. Arthroscopic surgery became something

people were doing in the 80's. The principals areabout the same.

Q. You referred to knee replacement surgery asmajor surgery. Do you remember that?

A. Correct.


Q. And you would be in the hospital about fourdays, and it takes you three months to recover afterthe surgery, you said that?

A. Yes.Q. Arthroscopic surgery is you go in the

morning and you're released that same afternoon, orevening, right?

A. That's right.Q. Would you consider that major surgery, or

minor surgery?A.. If the Judge doesn't mind, this is not a

wise crack, but there is an old expression, "Thereis no minor surgery, only minor surgeons. If it'syour knee and you have anesthetic anesthesia, it'smajor surgery. In comparing it, knee replacement isa much bigger operations, but a arthroscopic kneeprocedure is a major procedure. The fact you go inand out the same day doesn't make it inconsequential.

Q. That's fine. Compared to the kneereplacement, it's not major surgery?

A. Knee replacement is a much bigger deal.THE COURT: Mr. Gunzburg, remember, no

matter how much time you take, he is going to takethe same time. We will have to bring him back.

Dr. Hershon - LAINTIFF - Redirect

REDIRECT EXAMINATIONBY MR. GUNZBURG:

Q. Doctor, do yoU recall the difference between NewYork YankeeA-Rodand the pediatrician, Ms.Luna?

A. If It's all right, lets take A-Rodout of the eQuationbecause there are certain -lets just sayathletes.

Yes,athletes than any person in their 40's or 50's oryounger, the athletes are well conditioned and that personprobably doesn't have arthritic ChangesIn the knee, so theinjury to the knee, the ball Player, or football player land on hisknee, tears his meniscus is probably not aggravating theprevious arthritis, Which in this caseI think happened.

So the answer Is there Is a dIfference. There Isa bigdifference also In the abllity to rehabilitate. Their job is to justget better. They are usually In very terrifIc condition. Theyare not overweight, a lot of conditions, but it's the sameoperation. But that's where it ends In terms of the twopeople. If I were to operate on anybody In this room,inclUding mYSelf,then it wouldn't be comparable to operatingon a 26 year old professional athlete in terms Of how they aregoing to rehab and get better soon.

Q. Okay, counsel had a lot of Questions with regard tothis addendum to your report. Doesthe addendum reflectyour opinIon In connection with this case?

A. No, It doesn't.Q. I'm saying is that part of your - is that part of your

report, the addendum, the narrative report?A. It's part of the report. I don't know why it's not on

the chart. It was part of the narrative.Q. Part of the narrative report?A. Yes.Q. It's not a change of the report, It's part of thereport?A. Yes.Q. Also counsel aSkedYOUabout this degenerative

change versus arthrItis. And does degenerative ChangesalsoapPly to what we discussed before about a patient beingasymptomatic prior to haVing trauma?

Dr. Hershon - PLAINTIFF - Redirect

A. Yes. You can have degenerative changes In yourknee and feel fine, feel perfect. And then for some reason,Including an accident, It might flair up.

(~

How do I know what'S going on?Yes. You haven't looked in there with a test?I don't have a reason to look in there with a

Dr. Hershon - DEFENDANT - Recross

Q. Now, after defendant's, all his questions that he justfinished asking you, do you have a change to any of the opinionsthat you have made with regard to Ms. Luna having a permanentand partial disability, the causation of the accident and herposition being guarded and she requiring future surgery?A. I don't have a different opinion if that's what you'reasking. Only thing I would add that I didn't explain before wasthat, stickily women for some reason don't do as well when theytear their lateral meniscus, which is what she tore. That's j listanother issue.

In other words, if you take any woman who's lets saypast 30, or 40, after an arthroscopic procedure, take part ofthat lateral, or outside meniscus, part of that out, they don'tseem to do as well as other people for some reason.

Q. That's based -- Is that base on your experience, youhave seen that?

A. Not just my experience, it's a generally acceptedfact.

MR. GUNZBURG: I have no further questions.THE COURT: Anything else Mr. Reynoso?

RECROSS EXAMINATIONBY MR. REYNOSO:

C. YOU talked about people In general and recovery andathletes. Any reason why her left knee healed afterarthroscopic surgery completely and had no problems and mayhave problems with the right knee In the future and not leftknee?

A. I never x-raved, or did an MRIof her left knee. Idon't know what the surgery was. Sometimes you havearthroscopic surgery and you don't removed anything, ormaybe It can be a tiny little tear, so I can't comment on her.didn't do the surgery.

Q. Didn't the right knee have arthroscopic? Since theright knee surgery have you done an MRI?

A. Since she had the surgery?Q. Yes.A. I don't think so.Q. So how do you know what's going on in there right

now?A.Q.A.

Dr. Hershon - Lour'ENDANT - Recross

arthroscope.a. I'm talking about an MRI?A. If I were to go do another MRIwith the knee, it

would be with the Idea she now today needs anotheroperations right now. .

a. Becauseshe doesn't, you have not had an MRI?A. I haven't had a reason to do It because I'm not

thinking about operating on her now. les future.MR.REYNOSO:Fair enough. Thank you.THEWITNESS:Just to, about the athlete, you

know, normal people can recover quickly. If I operate onyour knee and you don't play ball, you can be fine. It'sdifferent from what the professional ball player can doand the average person.

MR.REYNOSO:Iwasn't asking you about that.Thank you very much.

THECOURT: Anything else Mr. Gunzburg?MR.GUNZBURG:I have no further questions.THECOURT: Doctor, yOUmay step down.Thank you.ladles and gentlemen of the jury, you have

heard everything today. Tomorrow, please, 9:45. Wehave medical testimony coming In tomorrow In theafternoon. Do not discussthe caseamong yourselves orwith anyone else. I think it's going to rain so stay dry.SeeYOUtomorrow.

(Whereupon, court recessed and the caseadjourned to April 27, 2012.

THECOURT: Mr. Gunzburg, please call yournext witness.

MR.GUNZBURG:CallDr. Stuart Kahn to thestand.

COURTOFFICER:Sir, remain standing. Raiseyour right hand.

Do you swear or affirm that the testlmonv youare about to give shatl be the truth, the whole truth andnothing but the truth so help you God?

THEWITNESS: I do.COURTOFFICER:State your name for the

businessaddressfor the record. thewitness:stuart hershon ......now,these diagrams aren't...

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